Habeas corpus is unavailable where child custody is not prima facie unlawful and material facts are disputed.

The petitioner sought a writ of habeas corpus for production of her nine-year-old daughter, who was living with respondent no. 2, the child’s father

The petitioner said the father had taken the child from Bhopal on an assurance that she would be returned before her school examinations; the father denied this and relied on a WhatsApp message in which the petitioner asked him to take the child because she and her father could not manage her

The petitioner did not file a rejoinder, and the father’s account therefore remained uncontroverted in the proceedings

The Court referred the parties to mediation, interacted with them and the child, and made interim visitation arrangements, but the parties did not settle their dispute

Whether the child’s custody with respondent no. 2 was unlawful so as to warrant habeas corpus relief under Article 226

Whether the disputed circumstances of the transfer of custody and the child’s welfare could be determined in the writ proceedings, or should be considered by a competent court in ordinary custody proceedings

Under Article 226, habeas corpus may be available in child-custody matters where a minor is detained by a person not entitled to legal custody; however, the remedy is extraordinary and ordinarily lies only where the detention is unlawful or without authority of law.

The ordinary remedies in child-custody matters are under the Hindu Minority and Guardianship Act, 1956, or the Guardians and Wards Act, 1890.

The child’s welfare is the paramount consideration, but where a detailed inquiry is required, a writ court may decline to determine custody on affidavits and direct the parties to the competent civil court.

These principles were drawn from *Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari*, (2019) 7 SCC 42

The Court found, prima facie, that the petitioner had voluntarily handed the child to respondent no. 2, and that he had since admitted her to a school in Delhi

The parties disputed whether the custody transfer was temporary and whether the father’s mother had promised to return the child after three days

Because those factual disputes and the child’s welfare required consideration of evidence, the Court held that they could not appropriately be resolved through the summary writ process on the parties’ affidavits

It directed that any such proceedings be decided without influence from the observations or interim orders in the writ petition.

The parties were to continue following the interim visitation arrangements recorded in the orders dated 5 December 2025 and 7 May 2026, including arranging between themselves the time and neutral place for handover of the child

The petition was disposed of on those terms